Commentary: How can anyone defend Harvey Weinstein? Duty.

By Abbe Smith

Special To The Washington Post

The outcry at Harvard University about Winthrop House dean and law professor ­Ronald ­Sullivan joining Harvey Weinstein’s defense team is a ramped-up, #MeToo version of what criminal lawyers call the “cocktail party question.” We hear it all the time: “How can you represent those people?” Those of us who are both criminal defense lawyers and feminists are sometimes asked a variation: “How can you represent rapists?”

This happened to Hillary Clinton when she ran for president. Suddenly, the fact that she had accepted a court appointment to represent an indigent man accused of child sexual assault when she was a young lawyer practicing in Arkansas became news. As Clinton explained in an interview, “I had a professional duty to represent my client to the best of my ability, which I did.”

Of course, Weinstein is not indigent — far from it — and Sullivan has no obligation to take his case. Lawyers in the United States have a choice in whom they represent — unless they are public defenders who are required to defend those who qualify for their services. As a former director of the Public Defender Service for the District of Columbia, Sullivan knows this distinction well. He made a choice to defend Weinstein.

There are good reasons for doing so: Able defense lawyers are essential to the functioning of the adversary system. They ensure that the government meets its burden of proof, which ultimately protects all of us. It is especially important to hold the government to its burden when the accused is a social pariah, as Weinstein has become. He is the galvanizing force behind the #MeToo movement and has become the face of predatory rape. The rush to judgment against Weinstein has been swift and harsh. No one is sticking their neck out for him. (Weinstein has denied all the charges.)

We ought to know better in the age of the Innocence Project. Things are not always what they seem. Mistakes happen. Process matters. There ought at least to be a trial before a public hanging. That’s where defense lawyers come in.

None of this answers how Sullivan — husband (of a strong feminist), father, dean and public-interest lawyer — could feel OK about zealously defending a man accused of rape. Working for Weinstein, he will have to do what Justice Byron White has described as the defense lawyer’s unique ethical duty: to “defend his client whether he is innocent or guilty … (and) put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth.”

Few criminal lawyers, female or male, enjoy rape cases. Even ­Atticus Finch in “To Kill a Mockingbird” — acting on behalf of an innocent black man accused of raping a white woman — derived “no pleasure” from cross-examining complainant Mayella Ewell. He “sat with his head down” when Ewell walked by him glaring with “hatred.”

I am a woman who, both as a public defender and a clinical law professor, has represented many men accused or convicted of sexual assault. These cases are not my favorite part of the job, but they are important. The clients are vilified, the stakes high, the punishment, in case of conviction, endless. After a sex offender has served his sentence, he wears a scarlet letter for the rest of his life: His name is on a registry, and he is restricted in where he can live and work.

Choosing who gets a zealous defense is not an individual lawyer’s prerogative — it can’t be reserved only for the factually innocent or recognizably sympathetic ­causes such as battered women who kill abusive husbands or nonviolent drug offenders facing lengthy sentences.

I have no problem with Sullivan explaining why he would agree to represent Weinstein, as he did to Harvard students and some reporters. This serves an educational function for the Harvard community and the general public. But he should not have to apologize. It’s a shame that Sullivan felt he had to distance himself from his client, saying, “When I’m in my lawyer capacity … it doesn’t mean I’m supporting anything the client may have done.”

That some students were upset by Sullivan’s decision to represent Weinstein is understandable. Sexual harassment and assault remain serious problems on college campuses and, as a dean of students, Sullivan has a special responsibility to sensitively handle such cases. However, that Harvard students — and the Harvard administration, based on its decision to conduct a “climate review” at Winthrop House — would be concerned about whether there is a “safe atmosphere” at the college because of Sullivan’s representation of Weinstein is shameful. Sullivan is not the first lawyer to represent an unpopular client, nor will he be the last. It is disappointing that there is so little understanding of the role of law and lawyers in a free society at this esteemed Ivy League institution.

— Abbe Smith is a professor of law at Georgetown University and a member of the American Board of Criminal Lawyers.